¶1dissenting.
¶2The relevant portion of the indictment in the instant cause reads as follows:
“. . . knowingly and intentionally deliver[ed] to Byron Smith a usable quantity of marihuana of more than one-fourth ounce, and did then and there receive remuneration for same.”
¶3The Controlled Substances Act (Article 4476-15, V.A.C.S.) makes delivery of marihuana a felony offense if either (1) the amount delivered is greater than one fourth of an ounce regardless of whether remuneration is involved or (2) any amount of marihuana is delivered for remuneration. Id., Section 4.05(d), (f).
¶4The majority makes no mention of the allegation in this case, but discussed the matter in an original draft in terms of conjunctive pleadings. That is, if an offense could be committed by several means, all or some of those means could be alleged conjunctively in one count and the conviction would be sustained if the evidence supported any single alleged means of commission. See Sidney v. State, 560 S.W.2d 679; Garcia v. State, 537 S.W.2d 930; and Jurek v. State, 522 S.W.2d 934. Is this indictment a “conjunctive” pleading? I believe so. See 30 Tex.Jur.2d, Indictment and Information, Section 42, Page 610, and cases there cited. However, although a conjunctive pleading in the sense that it utilizes the word “and,” there remains a fatal variance between what is alleged and the proof. The evidence does show appellant’s involvement in the delivery of marihuana for remuneration as a principal. However, the second alleged means for committing the felony of marihuana delivery herein refers expressly to the first alleged means when it alleges the remuneration was received for the “same.” Thus, there is an express reference to the precisely described substance and amount, i. e., “a usable quantity of marihuana of more than one-fourth ounce, . ” This express incorporation by reference binds the State to proving its allegations in every alleged detail. As the majority states, the stipulated evidence shows only .10 of an ounce was delivered. Moore v. State, 531 S.W.2d 140; Butler v. State, 429 S.W.2d 497; Seiffert v. State, 501 S.W.2d 124; Sidney v. State, supra (Onion, P. J., dissenting opinion); Rowland v. State, 523 S.W.2d 676; Weaver v. State, 551 S.W.2d 419.
¶5Since there exists a fatal variance between the allegata et probata, the evidence is insufficient and the conviction should be reversed and reformed to show an acquittal. See Burks v. U. S., 437 U.S. 1, 98 S.W.2d 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
¶6For the foregoing reasons, I respectfully dissent.